#### W. O. HALL v. F. C. HALL.

(Filed 19 May, 1920.)

1. Libel and Slander, Distinguished.

Libel or written slander is distinguished from oral slander, in that the former is actionable if it tends to render the party of whom it is written, liable to disgrace, ridicule, or contempt, and it need not impute any definite infamous crime.

2. Libel and Slander — Intention—Evidence—Questions for Jury — Damages — Punitive Damages.

A letter written to the married daughter of the plaintiff, in an action for libel, stated “I hate to expose him, as he is my brother and your father, but he is trying to expose me, and I will have a suit for him when he comes over,” that he had taken from another a load of fodder from his stack in the darkness of night, and had -put it in his wagon and hauled it off; that his half sister had been telling “some ugly tales on him” of his making her sit on his lap, hugging her, and wanting her to hug him; that he had given her some articles of apparel that he should have given his own wife and daughters; that the half sister had said “he had cut a shine over her, and she was afraid of him,” etc.: Held, sufficient for the determination of the jury of whether the defendant had intended to charge the plaintiff with the crimes of stealing and attempted incest with his half sister, and. of malice sufficient upon which punitive damages may be awarded by them in addition to actual or compensatory damages. The charge of the judge in this case is approved.

S. Appeal and Error — Objections and Exceptions — Unanswered Questions.

Upon exception to the ruling out of questions asked a witness upon the trial, it must be shown what the answers were expected to have been, so that the Court may pass upon their relevancy and materiality on appeal, or the exception will not be considered.

Appeal by defendant from McMroy, J., at tbe July Term, 1919, of Ashe.

This is an action to recover damages for the publication of a libel of and concerning the plaintiff, contained in a letter written by the defendant to the married daughters of the plaintiff in the following words: “I hate to expose him as he is my brother and your father, but he is trying to expose me, and I will have a suit for him when he comes over, *572instead of bringing feed for bis cattle wben be was in Wilkes be went to a man’s stacks in tbe darkness of tbe nigbt and got bim a load of fodder, put it in bis wagon, and bauled it off. I am sorry be bad sucb little judgment as that; and Cora Hall is telling ugly tales on bim and says be tried to and made ber sit on bis lap and bugged ber, and wanted ber to bug bim. Wben be went back borne be bought ber a nice sweater and sent ber. We tbink be ought to have bought you girls a sweater apiece or .your ma. He was never that free-hearted with bis whole sisters, let alone other people. We tbink be ought to have bought bis little grandchildren sweaters and sucb like, and help you girls with what be bad to give Cora Hall, for she bad plenty of money and clothes, too. She said be cut sucb a shine over ber she got afraid of bim. Of course I reckon be told your ma about it. I hope you will not tbink bard of me for writing tbe truth, for I can prove what I have written.”

Cora was a half sister of tbe plaintiff, and was dead at tbe time of tbe trial,

Tbe plaintiff in bis testimony gave tbe following account of bis getting tbe fodder:

“I went to Wilkesboro, and was gone three nights, and on my way back I stopped at my brother Felix Hall’s store a little after nigbt, don’t know exactly tbe time, and there was snow on tbe ground; I got out of my wagon, rapped on tbe door and hallowed, but there was no answer. I wanted to buy some feed, and I went, around to Felix Hall’s fodder stack, took out two bunches, put it in my wagon, and went to Billings and stayed all nigbt. I did not see F. C. Hall till 27 December, about two months after I got tbe fodder and stayed all nigbt with bim. I told bim I took a little of bis fodder to feed my cattle.”

He also denied taking any liberty with bis half sister, Cora.

Tbe defendant admitted tbe publication of tbe letter, but denied that be made or intended to make a charge of larceny or of attempted incest, and be alleged that tbe words written by bim were true.

There was a motion for judgment of nonsuit, which was overruled, and defendant excepted.

Tbe other exceptions will be referred to in tbe opinion.

Tbe jury returned tbe following verdict:

“1. Did tbe defendant write and publish of and concerning tbe plaintiff tbe language or words in substance as set out in paragraph two of tbe complaint? Answer: ‘Yes.’

“2. Did be mean thereby to charge tbe plaintiff with larceny? Answer: ‘Yes.’

“3. Did be mean thereby to charge tbe plaintiff with an attempt to commit tbe crime of incest? Answer: ‘Yes.’

*573“4. Were said words written with, malice towards tbe plaintiff? Answer: ‘Yes.’

“5. Were tbe charges made in tbe written words contained in paragraph two of tbe complaint true? Answer: ‘No.’

“6. What damage is tbe plaintiff entitled to recover of tbe defendant ? Answer: ‘$1,000.’ ”

Judgment for tbe plaintiff, and defendant appealed.

R. A. Doughton and Bowie & Austin for plaintiff.

F. B. Hendren and G. L. Parle for defendant.

Allen, J.

Tbe motion for nonsuit is on tbe ground that tbe letter written by tbe defendant does not, by fair intendment, charge tbe plaintiff with tbe crime of larceny, or with an attempt to commit tbe crime of incest, and that if it does so tbe plaintiff admitted tbe truth of tbe charges contained in tbe letter.

Tbe defendant fails to note tbe distinction between oral and written slander, or libel, tbe latter being actionable if it tends “to render tbe party liable to disgrace, ridicule, or contempt, and it need not impute any definite infamous crime. Simmons v. Morse, 51 N. C., 7.” Brown v. Lumber Co., 167 N. C., 11.

But tbe letter goes further than this, and is clearly susceptible of tbe meaning that tbe defendant intended to charge tbe plaintiff with crime, and it was for tbe jury to say in what sense tbe language was used.

In reference to tbe charge of larceny, McCall v. Sustair, 157 N. C., 181, bears a close resemblance to tbe present action.

Here tbe defendant wrote “be went to a man’s stacks in tbe darkness of tbe night and got him a load of fodder,” and in tbe Sustair case tbe defendant said bis brother “ketched McCall taking some pokes of cotton out of bis cotton patch tbe night before,” and it was held that tbe judge “properly charged tbe jury that tbe burden was upon the plaintiff to find whether tbe words in view of tbe circumstances under wbieb they were used naturally imported that tbe persons spoken of bad committed tbe crime of larceny, and that tbe words were used with tbe intent to charge tbe plaintiff with larceny in uttering said words.”

This is stronger than tbe Sustair case in that there is evidence of express malice in tbe letter, and tbe charges against tbe plaintiff are preceded by tbe statement, “I will have a suit for him when be comes over,” which would incline one to tbe belief that tbe defendant intended to charge tbe plaintiff with crime, and to injure him.

Nor is it true that tbe plaintiff admitted tbe truth of tbe charges made against him.

*574He expressly denied any misconduct witb bis balf sister, Cora, and while be admitted taking tbe fodder, bis explanation of tbe transaction rebutted tbe idea of tbe presence of tbe felonious intent, wbicb is an essential element of larceny.

We are therefore of opinion tbe motion for judgment of nonsuit was properly denied, and tbis covers all of tbe exceptions relied on in tbe brief, except to tbe refusal to permit certain witnesses to answer, wben asked as to a conversation witb Cora Hall, and an exception to tbe charge permitting tbe jury to assess punitive damages.

Tbe following is representative of tbe three exceptions taken to tbe refusal to allow witnesses to speak of conversations witb Cora Hall.

“Q. Did you ever bear Cora make any statement about W. O. Hall going to her borne?

“Plaintiff objects; objection sustained, and defendant excepts.

“Tbe defendant’s counsel states that tbe foregoing question is asked for tbe purpose of mitigating damages.” '

It will be noted that there is no statement in tbe record that tbe answer to tbe question would be “Yes,” nor is tbe purport of tbe conversation shown, and so far as we can see, of a new trial should be ordered, tbe witness might deny she bad any conversation witb Cora Hall, and tbe exceptions cannot therefore be considered. Blue v. Brown, 178 N. C., 336.

Tbe charge on punitive damages is in accord witb tbe authorities. Fields v. Bynum, 156 N. C., 418; Ivie v. King, 167 N. C., 177.

His Honor instructed tbe jury on tbe fourth issue as follows: “Tbe burden of tbis issue is also on the plaintiff to satisfy you by tbe greater weight of tbe evidence that tbe words written were written witb malice toward tbe plaintiff. What is malice, gentlemen of tbe jury? Malice is ill-will, spite. Did tbe words charge these crimes, and if so, were they written because tbe defendant bad ill-will or spite toward tbe plaintiff ? If you find by tbe evidence, and from its greater weight, that tbe words were written with malice, that is, was it ill-will and spite towards tbe plaintiff? then you will answer this fourth issue ‘Yes.’ If you do not so find, you will answer it ‘No.’ ” And on tbe fifth, after considering compensatory damages: “In addition, gentlemen of tbe jury, to actual damages, if you answer tbe fourth issue ‘Yes,’ that is, that tbe words were written witb malice toward tbe plaintiff, you may allow punitive damages. Punitive damages, sometimes called ‘smart money,’ are allowed in case where tbe injury is inflicted in a malicious, wanton, and reckless manner. Tbe defendant’s conduct must have been malicious or wanton, displaying a spirit of mischief toward tbe plaintiff, or of reckless and criminal indifference to bis rights, and wben these elements are present damages commensurate witb tbe injury may be *575allowed by way of punishment of the defendant, but these damages are awarded on the grounds of public policy, for example’s sake and not because the plaintiff has a right to the money. So, in addition to the actual damages, gentlemen of the jury, if you find that the plaintiff is entitled to recover damages at all you may allow punitive damages, that is, damages by way of punishment to the defendant for his conduct. In regard to this matter, and in answering the issue, you may find, first, what actual damages he has sustained, and then add to that such amount as you may find that the defendant shall be punished in this case by way of punitive damages, and the two together will be your answer to the issue, that is, if you decide to allow punitive damages against the defendant.”

The charge is clear and accurate, and properly safeguarded the rights of the defendant.

No error.